Waheed Balogun V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALINJE, J.S.C.

The Appellant herein along with three other accused persons were arraigned before the High Court of Oyo State holden at Ogbomoso on a two counts charge of conspiracy to commit murder and murder under Sections 324 and 319 of the Criminal Code Cap. 30 Volume 11 Laws of Oyo State 1978. At the end of the trial that followed the Appellant and his co-accused persons were each found guilty of the two counts charge and were accordingly convicted and sentenced to ten years imprisonment for the first count and death by hanging on the second count.

Being aggrieved, the Appellant, who was the second accused at the trial Court appealed to the Court of Appeal, Ibadan (henceforth to be referred to as the lower Court). The appeal was heard, and in a unanimous judgment delivered on the 18th day of March, 2014 their Lordships, (Coram Uwa, Tsamani and Daniel-Kalio JJCA) dismissed the appeal. It is against the decision of the Court of Appeal that the Appellant has brought this appeal. His notice of appeal, filed on the 31st of March, 2014 contains ten grounds of appeal. Parties filed and

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exchanged briefs of argument. At pages 3-4 of the appellant’s amended brief of argument, settled by Chief Michael Abayomi Bisade Alliyu, learned counsel for the Appellant, two issues are submitted for determination of this appeal as follows:-

1. Whether the lower Court was right in holding that the offences of murder and conspiracy had been proved against the Appellant beyond reasonable doubt
2. Whether the lower Court was right in relying on legally inadmissible confessional statements and materially contradictory evidence of prosecution witnesses who have interest to serve to uphold the conviction of the Appellant by the learned trial Judge.

Mr. Kazeem A. Gbadamosi, learned counsel for the Respondent formulated one issue for determination of this appeal and it reads as follows:-

“Whether the lower Court was right in affirming the decision of the trial Court convicting the Appellant of conspiracy and murder given the available evidence both oral and documentary at the trial.”

The prosecution’s case at the trial Court is that the Appellant and three other persons who are members of Odua Peoples Congress (OPC) conspired and

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kidnapped one Raji Tiamiyu, a traffic warden (policeman) at Taki area of Ogbomoso and conveyed him in a taxi to Odo-Oba area at the outskirt of Ogbomoso town where they took him into the bush and shot him dead with a dane gun fired by one of them. The killing of Raji Tiamiyu a traffic warden was carried out in revenge for the killing of one Alfa Kasali Shittu, a member of Odua Peoples Congress (OPC) allegedly shot by the police on the 26th November, 2002 as a result of a gun shoot out confrontation between the police and the members of Odua Peoples Congress (OPC).

I have read through the record of this appeal and the briefs of argument filed by the parties and I am of the firm view that the only issue calling for determination of this appeal is whether the lower Court was right to have upheld the judgment of the trial Court on the ground that the prosecution had proved its case beyond reasonable doubt.

In criminal cases, the burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it. See Section 135(1) and (2) of the Evidence Act 2011. Section 36(5) of the 1999 Constitution of the Federal

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Republic of Nigeria provides that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. The assertion before the trial Court that the appellant committed the offence for which he was charged, tried and convicted was made by the prosecution. The burden of proof was therefore on the prosecution who was required to prove its case beyond reasonable doubt, and a general duty to rebut the presumption of innocence constitutionally guaranteed to the Appellant. This burden never shifts. See Alabi vs The State (1993) 7 NWLR (Pt. 307) 511 at 531 paras A-C: Solola vs The State (2005) 5 SC (Pt. 1) 135.